Werry v The Queen
[2013] VSCA 373
•18 December 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0227
| JASON WERRY |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES | REDLICH and COGHLAN JJA and DIXON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 9 September 2013 |
| DATE OF JUDGMENT | 18 December 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 373 |
| JUDGMENT APPEALED FROM | DPP v Werry (Unreported, County Court of Victoria, Judge Taft, 12 September 2012) |
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CRIMINAL LAW – Leave to appeal – Conviction – False imprisonment – Rape – Whether verdicts unsafe or unsatisfactory – Inconsistencies in complainant’s evidence – Open to the jury to be satisfied beyond reasonable doubt of guilt – Libke v The Queen (2007) 230 CLR 539 applied – Leave to appeal refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Doogue & O’Brien |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA:
I agree with Coghlan JA that the application for leave to appeal against conviction should be refused.
The DNA evidence constituted cogent evidence of the applicant’s guilt. The continuity of possession of the sample was not challenged. It was not suggested that it might be explained by contamination. The likelihood ratio was not put in issue. There were similarities between the complainant’s description of her assailant and the applicant. The identikit depiction of the assailant prepared by the complainant was similar to the photograph of the applicant taken a few months before the offence. The complainant testified that the assailant wore an eyebrow ring with two balls on it above his left eye brow. There was evidence that the applicant at the material time wore a barbell with gold circles at either end above his left eyebrow. The applicant had access to a car that the fitted the complainant’s description of the car of the assailant. Evidence of a complaint made on the evening of the offence and evidence of the complainant’s distress was adduced before the jury. The complainant provided explanations for her initial untruthfulness. It was open to the jury to conclude that the applicant’s account contained lies and that the alibi evidence was unsound or false. The prosecution relied upon the falsity of the alibi as consciousness of guilt.
I agree with Coghlan JA that the evidence was not such that the jury must have entertained a reasonable doubt about the applicant’s guilt.
COGHLAN JA:
On 16 September 2011 the applicant was convicted of the charges set out in the table below and on 14 September 2012 he was sentenced accordingly. The delays were a product of the applicant’s involvement in a different case.
The applicant had also pleaded guilty to and was sentenced with respect to the other matters as set out.
Charge on Indictment Offence Maximum Sentence Cumulation 1 False imprisonment [common law] 10 years [Crimes Act 1958 s 320]
18 months 9 months 3 (digital) Rape [Crimes Act 1958 s 38]
25 years 7 years 1 year 4 (penile) Rape
25 years 8 years Base Applicant was also sentenced in relation to a plea indictment not subject of the application for leave to appeal conviction 1 Trafficking drug of dependence to a child [Drugs, Poisons and Controlled Substances Act
1981 s 71AB]
20 years 2 years 3 months 2 Trafficking a drug of dependence to a child 20 years 2 years 3 months Total Effective Sentence: 10 years, 3 months New Non-Parole Period:[1] 10 years commencing from 16 September 2009 Pre-sentence Detention Declared: 36 6AAA Statement: N/A Other orders: Disposal; Sex Offenders Registration [1]The applicant was at the time of sentence serving a term of imprisonment of 7 years 1 month with a non parole period of 5 years.
By notice dated 14 November 2012 the applicant seeks leave to appeal against the convictions of 16 September 2011 on the following grounds:
1. The verdicts are unsafe and unsatisfactory for the following reasons:
a. The complainant was shown a photo board on 16 June 2008 containing a picture of the Applicant. The complainant positively denied that the person she recognised as ‘Jase’, known to her at least 5 to 6 months, was the man who raped her.
b. The complainant testified she met the applicant in the summer of 2007/2008, only one to three months after the alleged incident, and four to six months prior to the photo board identification process.
c. The complainant made two VATEs. The first took place on 26 November 2007 and the second on the 11th May 2009 after being confronted by police in January 2008 about various lies told by her in her first VATE. The complainant admitted to lying about a number of significant matters, facts and things, including matters, facts and things allegedly occurring on the night of the alleged offending.
d. In particular, the complainant admitted to having lied as to the facts and circumstances of the kidnapping and abduction, and alleged assaults at the time of the charged events. She admitted to these lies on 3 January 2008, 16 months prior to being interviewed by VATE on 11 May 2009.
e. Later, on 3 May 2009, the complainant admitted to having lied about having sexual intercourse with another male (whom she knew to be a lot older than her) only hours prior to the alleged offending.
f. The complainant described the offender has having brown eyes. The applicant has very light, ‘piercing’ blue eyes.
g. The complainant described the location of various piercings on the face of the offender which were inconsistent with piercings the applicant had at the relevant time.
h. The complainant told her mother immediately after the photo board identification process that the applicant was not the rapist.
i. On 6 May 2009, the complainant again denied ever having had sex with the applicant.
2. The trial judge erred in allowing the prosecution to lead evidence of photographs of the applicant in which the colour of the applicant’s eyes appeared brown/black/dark.
3. The trial judge erred in not permanently staying the proceedings.
The circumstances of the offending are usefully set out in the Overview of Facts and Proceedings in the Registrar’s Neutral Summary as follows:
On 25 November 2007, the complainant (then aged 14 years), was walking along a street in Dandenong at about 9.30pm. A car pulled up and a man (said by the prosecution to be the applicant) offered her a lift, which she accepted.
The car was a four door sedan with a proper boot. It was light brown or cream in colour with a cream interior.
The complainant got into the front passenger seat. The man drove to a secluded area, detaining her against her will. The man applied a substance to her genitals and then raped the complainant, digitally and then with his penis.
The man drove the complainant to Cranbourne Railway station where she notified an employee of the railway counter.
The police came and took the complainant for medical examination, including the collection of vaginal swabs. The following day, on 26 November 2007, she completed a VATE recording.
The man had a silver eyebrow ring in his left eyebrow and short brown curly hair. The complainant completed an identikit photo of the man with police which she described as ninety percent accurate.[2] The complainant did not know the man who had raped her.
On 16 June 2008, the complainant was shown a photoboard.[3] She pointed to a picture of the applicant and said ‘I know number 7, he’s Jase’.[4] The informant asked ‘Is he the one who raped you?’ The complainant responded that he was not the one who had raped her.[5]
DNA collected in one of the vaginal swabs taken from the complainant matched the DNA profile of the applicant.
On 4 May 2009, the informant met with the complainant. They had a discussion in the carpark of a McDonald’s. The informant asked the complainant whether she had ever had sex with the applicant, which she denied.[6] The informant told the complainant that investigations indicated that it was the applicant who had raped her. The complainant became quiet and put her hand up to her face. She then mentioned that the front teeth of the man who had raped her were ‘coming out’ or prominent, like the applicant’s teeth. [7]
On 11 May 2009, the complainant completed a second VATE recording in which she admitted to having told a number of lies in the first VATE recording. In the second VATE, the complainant said she had first met the applicant in December 2007 or January 2008, after the incident. In the second VATE, the complainant included reference to the teeth of the man who had raped her and the applicant’s teeth, both being ‘buck’ teeth.
[2]See Exhibit 4 – Face Compilation by witness [the complainant] to police on 27 November 2007.
[3]See Exhibit 6.
[4]Or ‘Jay’.
[5]Transcript of Trial, DPP (Vic) v Werry (County Court of Victoria, Judge Taft, 2-16 September 2011) 576 (‘TT’).
[6]Ibid 622-3.
[7]Ibid 593.
Ground 2 and the added ground relating to the refusal of the trial judge to stay the indictment were abandoned at the hearing of the appeal.
Ground 1 – Unsafe and unsatisfactory
The particulars of the ground are set out in the ground itself. It is true to say that the applicant may well have not been charged or convicted without the DNA evidence. The analysis set out in the written case and described in the particulars of the ground appears to be accurate. The complainant at no stage said or suggested that it was the applicant who raped her notwithstanding the fact that by the time she was shown a photoboard she knew the applicant. In fact at that time she said the applicant had not raped her. The submission is that the verdicts are unsafe and unsatisfactory because the conviction is in the face of the emphatic assertion by the complainant that it had not been the applicant who raped her. That is an assertion that the complainant’s evidence is sufficiently reliable to create a doubt about the matter while asserting that she can be shown in other respects to be unreliable and potentially a dishonest witness. It was the prosecution case that the complainant was simply mistaken about the matter. She had only been 14 years old at the time of the rape.
On consideration of this ground the court is obliged to make its own assessment of the material so as to be satisfied that the jury could have come to that conclusion. That question is often dependent upon what the court makes of the reliability and credibility of the complainant in a sex case. This is not such a case. The question is whether given the evidence of the complainant the jury must have entertained a reasonable doubt about the matter. As Hayne J observed in Libke v The Queen,
… the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[8]
[8](2007) 230 CLR 559 at 596–7 [113] (with whom Gleeson CJ and Heydon J agreed (562 [1], 597 [117] respectively).
There were items of the evidence of the complainant which supported the proposition that the applicant was the offender. With the assistance of a police officer she had prepared a face image of the person who she said attacked her. That image was tendered as an exhibit in the trial as was the photoboard which had been referred to earlier. The court had access to copies of those exhibits. There are some similarities between the face image and the photograph of the applicant. The complainant said at the time that the assailant had brown eyes. He is said to have ‘piercingly’ blue eyes. There were also discrepancies between the applicant and the complainant’s description of age, height and whether he had a goatee beard. There were also some differences between the applicant’s piercing and the jewellery he had on his face. The complainant said the car was a brown coloured Laser. The applicant gave evidence and claimed to have an alibi in that he was working on a car at the relevant times.
The argument on behalf of the applicant was that the evidence of the complainant shows that in her description of the assailant given at the time of the rape there were a number of discrepancies between that person and the applicant. The applicant did not have access to a small brown Laser motor car. The complainant had said that the applicant was not the person who raped her. It followed that the DNA was wrong. It was not for the applicant to rebut the DNA evidence but cases were known of errors relating to DNA testing.
It was the prosecution case that the complainant was mistaken in her assertion that it was not the applicant who had raped her.
The respondent submits that the case needed to be looked at as a whole. This was not a case merely dependent upon the DNA evidence. The DNA evidence was an important part of the case. The complainant admitted that she had sexual intercourse with another man in the nights before the rape. The man was excluded as contributing to the DNA material found. There did not appear to be any basis for contamination.
The description of the assailant given by the complainant did have clear similarities to the applicant. The FACE image did bear a reasonable resemblance to the applicant.
Those matters included her description of short curly hair and that he had a silver eyebrow piercing in his left eyebrow. She later said in re-examination in the trial that it was a silver bar bell. There was evidence that at about the relevant time the applicant had either a silver or a gold bar bell in his left eyebrow.
At the time the complainant was told that the applicant’s DNA had been found on the swab she said that the assailant had protruding top teeth as does the applicant (that was the first time she had given that description).
The complainant said the assailant was about 162cm tall when in fact he is 178.5cm tall.
The complainant described a light brown/cream Laser motor car and an image of it was produced by a police officer on her instructions. That was exhibit 5 at the trial. The image shows a hatchback vehicle but the complainant was emphatic in her evidence that the vehicle she was taken in had a boot.
Although the issue was contested there was evidence that the applicant had access to a pre-2006 silver Mazda 323 at the relevant time. Photographs of the vehicle were tendered at trial. The applicant accepted that a Mazda 323 and a Laser KA or KB were almost identical. The applicant’s partner at the time confirmed that the applicant drove a silver Mazda up until about June 2008 and that he also had a barbell piercing in his left eyebrow which she had given him in 2002/2003.
The applicant’s sister gave evidence that she and her husband owned a silver Mazda since 1997 and that on occasion the applicant would do work on it in the presence of herself and her husband. She kept a diary of when the car was borrowed by people in case there was ever a fine issued. The diary was for the year 2008. It was suggested by the prosecution that the diary was false and concocted to assist the applicant.
The applicant gave evidence denying the offences and gave evidence of an alibi. He said that between 25 and 26 November 2007 he had been at home with his brother working on a motor car with him. He fixed the date by reference first to the Summernats event and when that was shown to be not possible, he fixed the date by reference to the Springnats event which had been concluded on 25 November 2007.
The applicant’s brother was called to give evidence to support the alibi but it is reasonable to say that he could not confirm the actual date when work was done on the car.
The applicant’s mother gave evidence in support of the alibi and said she was certain about the date. It was open to the jury to conclude that the alibi was false.
The jury had been instructed that if the evidence of the alibi could not be rebutted by the prosecutor beyond reasonable doubt then they were to acquit.
When all of the alibi evidence is examined, it was open to the jury to reject the evidence of the alibi either because they thought it had been concocted or that if work was done on the car, it was not done on the night in question. It was for the jury to decide whether the evidence was as a result of a mistake or done deliberately.
The jury must have rejected the evidence of alibi. It did not matter whether they treated the false alibi evidence as being an implied admission but it was open for them to have done so.
It was put as part of the prosecution case that in a field record of interview with the police the applicant had lied about knowing the complainant. In his evidence he accepted that he had lied when he said that he had never met the complainant and said that he might have been confused about it. That was a matter put to the jury going to his credit. Since the applicant gave evidence on oath denying those offences and giving evidence of alibi, that evidence was significant.
This appeal was argued before us on the basis that there were weaknesses and
so called contradictions in the evidence of the complainant which rendered the verdict unsafe and unsatisfactory. The argument ran that it was in those circumstances dangerous to act on the DNA evidence. There was no evidence in the trial from which it could be concluded that the DNA results were as a result of contamination.
It was also argued at trial that the complainant had not been raped and had made the allegation up to gain sympathy with her mother. The complainant was then 14 and had run away from home.
It was not argued on the appeal as part of the ground that the finding that the complainant had been raped was unsafe or unsatisfactory.
I have examined the evidence. I am satisfied that on the whole of the evidence the jury were entitled to conclude:
· That the complainant had been raped;
· That a sample of sperm recovered from the complainant contained the applicant’s DNA;
· The applicant’s alibi did not create a reasonable doubt about the matter;
· That other features of the evidence included rather than excluded the applicant as the perpetrator; and
· The applicant was the perpetrator.
I would refuse leave to appeal.
DIXON AJA:
I have had the advantage of reading in draft the reasons for judgment of Coghlan JA and Redlich JA and for the reasons they express I agree that the application for leave to appeal against conviction should be refused.
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